90 N.Y.S. 56 | N.Y. Sup. Ct. | 1904
This action is brought on a policy of life insurance issued by the defendant on the 30th day of September, 1902, for the sum of $1,000, on the life of William Hook, payable to his brother, the plaintiff herein. William Hook died April 17, 1903.
The policy contains the following provision: “ This policy is issued in consideration of the application therefor,, a copy of which is hereto attached and is made a part of this contract.” The application was signed by the insured September 23, 1902, and after certain questions therein propounded and the answers thereto contains the following statement: “ I hereby declare, That the above are true answers to the foregoing questions, as well as those made or to be made to the company’s medical examiner, and I hereby agree that these statements, whether, written by my own hand or not, with this declaration, shall form the basis of the contract for insurance, and that any untrue or fraudulent answers, any suppression of facts in regard to my health, habits or circumstances, or neglect to pay the premium on or before the day it becomes due, shall violate the policy, and forfeit all payments made thereon.” The medical- examination was made September 26, 1902, the questions and answers being signed by the insured together with a states ment that “the answers form an essential part of the contract.” The contract also provided that no agent had power to change the terms thereof.
The application of the insured and the answers and statements made to the medical examiner are as much a part of the contract as the policy. Together they constitute the contract between the parties and under the authorities the an
In the medical examination the following question and answer appear: “Has any application for insurance upon your life ever been made to any company or association upon which a policy has not been granted ? If so state name of company or association. No.” The importance of this question is unchallenged and the untruthfulness of the answer is admitted. An application to one company had been rejected several years prior to the time this question was answered and an application to another company was then pending and was rejected a few days thereafter. The defendant clearly had a right to know about both applications and in the absence of any explanatory evidence on the part of the plaintiff this untrue answer- vitiates the policy.
Immediately before the signature of the insured to the medical examination appears.the following certificate: “I hereby certify that my answers to the above questions are true and are correctly recorded by the medical examiner.” In Grattan v. Metropolitan Life Insurance Co., 92 N. Y. 274, it was said by the court in reference to a precisely similar state of facts and concerning a certificate similar to the one above set forth: “The controversy is thus narrowed to the single question, who was responsible for the falsehood; was the insured chargeable with it, or was it the sole fault of the company through its medical examiner ? On the face of the papers it was the insured. His application^ signed by him, and with knowledge of the contents of which he is prima, facie chargeable, declares and warrants that his •answers to the questions therein contained, 1 and to those in the examiner’s report herewith are fair and true.’ The
The explanatory proof in this case to overcome and rebut 4‘ the applicant’s written admission ” is claimed by the plaintiff to exist in his own testimony. He testified that he was present at the time of the medical examination and that his brother stated to the medical examiner correctly and accurately the facts in reference to the previous applications. That the examiner recorded the answer to the question and did not read the same to the insured, and that the latter signed the medical examination without reading the same. On this state of facts it is claimed that the examiner and not the insured was responsible for the untrue answer, and the plaintiff relies on the following cases to establish his right to recover notwithstanding such untrue answer: Sternaman v. Metropolitan Life Insurance Co., 170 N. Y. 13; Jacobs v. Northwestern Life Assurance Co., 30 App. Div. 285; affd., 164 N. Y. 582; Peters v. United States Industrial Insurance Co., 10 App. Div. 533; affd., 154 N. Y. 158; O’Brien v. Home Benefit Society, 117 id. 310. If the facts above referred to were the only ones bearing on this point those authorities would be controlling, but I think they have no application to such a situation as is here presented.
In New York Life Insurance Co. v. Fletcher, 117 U. S. 519, it was said: “ There is another view of this case equally fatal to a recovery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at once disclosed by the copy of the application, annexed to
It further appears that the same question was asked in the application made three days before the medical examination and that the same answer was given. The plaintiff called the company’s agent as a witness and it appears from his testimony that the insured gave to him correct information as to one of the prior applications but gave himno information whatever concerning the other. The answer in the application was falsely recorded by the agent who testifies that thereafter he handed the application to the insured for his signature, and that he does not know whether or not the insured read it. The presumption is that he did read it. The case, therefore, shows as a matter of law an incomplete and hence an incorrect answer on the part of the insured to the agent of the defendant who recorded the answers contained in the application; and also knowledge on the part of the insured that such answer as given by him to the agent was improperly recorded by the latter in the application. Plaintiff contends that this circumstance is immaterial in view of the fact that correct information was "subsequently given to the medical examiner. We have seen, however, that it is incumbent on the plaintiff to show a state of facts indicating honesty and truthfulness on the part of the insured; and also to show reasonable care and diligence and good faith toward the defendant. And the fact that the insured knew that in his application the answer to the question under consideration was false has a bearing on this branch of the case unfavorable to the plaintiff.
Motion for nonsuit granted.